People v. Marlow

• Decision Date: 19 August 2004
• Docket Number: No. S026614.,S026614.
• Citation: 34 Cal.4th 131,96 P.3d 126,17 Cal.Rptr.3d 825
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Gregory MARLOW, Defendant and Appellant.

17 Cal.Rptr.3d 825

96 P.3d 126

34 Cal.4th 131

The PEOPLE, Plaintiff and Respondent, v. James Gregory MARLOW, Defendant and Appellant.

No. S026614.

Supreme Court of California.

August 19, 2004.

Certiorari Denied March 28, 2005.

Barry L. Morris, under appointment by the Supreme Court, Hayward, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and Robert R. Anderson, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Keith I. Motley, William M. Wood and Pamela Ratner, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied March 28, 2005. See 125 S.Ct. 1706.

WERDEGAR, J.

Defendant James Gregory Marlow pleaded guilty to a charge of burglary and to the murder, kidnapping, robbery and rape of Lynell Murray. (Pen.Code, §§ 459, 187, 207, 211, 263.)¹ Defendant admitted special circumstance allegations that the murder had been committed during the course of robbery, burglary and rape, and that he was armed with a firearm in the commission of the offenses; following his waiver of a jury trial, in a separate proceeding the trial court found he had suffered two prior serious felony convictions. (§§ 190.2, former subd. (a)(17)(i), (ii), (iii), (vii), 12022, subd. (a), 12022.5, 667, subd. (a).) The jury returned a verdict of death. The superior court denied defendant's application to modify the verdict (§ 190.4, subd. (e)) and sentenced him accordingly. This appeal is automatic. (§ 1239, subd. (b).)

We affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase

Because defendant pleaded guilty to all charges and admitted all special circumstance allegations at the conclusion of the prosecution's case-in-chief, and now raises no claims of error relating to the guilt phase evidence, we need only summarize briefly the evidence of his guilt.

On November 12, 1986, Lynell Murray was working at Prime Cleaners in Huntington Beach in Orange County. Murray, a college student, had planned to meet her boyfriend, Robert Whitecotton, after she finished work at 6:30 p.m. At 6:00 p.m., a customer saw defendant and Cynthia Coffman, embracing passionately, in an alley behind Prime Cleaners. When Murray failed to show up for their date, Whitecotton went to Prime Cleaners and saw that the store was closed and Murray was gone, although her car remained in the parking lot. At 8:30 that evening, Mooshang Movafaghi, the proprietor, discovered the store had been ransacked and the day's receipts, along with the cash that should have been in the register for the start of the next day's business, and some clothing were missing.

That same evening, Coffman, using Murray's credit card, checked into room 307 at the Huntington Beach Inn, signing the register in Murray's name. A few minutes later, a balance inquiry and a withdrawal of $80 were made on Murray's checking account at a Versateller at the Corona del Mar branch of the Bank of America. One minute later, an additional $60 was withdrawn, leaving a balance of less than $10. The next day, November 13, a hotel employee found Murray's body in the bathroom of room 307. She had been beaten and strangled with a strip of towel; her head, bound with towels, was submerged in shallow water in the bathtub. Postmortem examination revealed sperm in her vaginal area; her maroon bra, pantyhose and one earring were missing.

Later, Coffman checked into the Compri Hotel in the City of Ontario, again using Murray's credit card. Around midnight on November 13, in a nearby Denny's restaurant, a waiter serving Coffman and Marlow saw them kissing and cuddling.

Defendant and Coffman were arrested the following day as they walked along a road in the Big Bear area in San Bernardino County, where law enforcement officials had learned a man and a woman were attempting to use Murray's credit card to purchase clothing in two different sporting goods stores. In Coffman's purse were identification cards belonging to Lynell Murray, credit card receipts bearing Murray's forged signature, an earring matching the lone earring found in Murray's ear when her body was discovered, a loaded revolver and ammunition, and a brown bag with money taken from Prime Cleaners. A search of a room defendant and Coffman had rented at the Bavarian Lodge in the Big Bear area yielded clothing stolen from Prime Cleaners, including a gray suit jacket defendant had been seen wearing.

After defendant's and Coffman's arrest, police found a white Honda belonging to Corinna Novis, a resident of Redlands in San Bernardino County who had been missing since November 7. The car was parked off a highway near Santa's Village, an amusement park in San Bernardino County. In a trash can on the park premises, a maintenance worker found a pillowcase containing the bra and pantyhose worn by Lynell Murray on November 12, personal checks made payable to Prime Cleaners, laundry receipts from the same establishment, and a matchbook from the Compri Hotel. Defendant's fingerprints and palm prints were found on the Honda.

On November 15, the body of Corinna Novis was found buried in a shallow grave in a vineyard in San Bernardino County. The cause of death was ligature strangulation; sperm was found in her rectum. The prosecution presented evidence that defendant and Coffman had abducted Novis from a shopping center in Redlands on November 7 and taken her to the home of Richard Drinkhouse, where they held her in a bedroom and tried to obtain her personal identification number (PIN) in order to access her bank account. After defendant's sister, Veronica Koppers, arrived at the Drinkhouse residence, Drinkhouse overheard Marlow tell her of his plan to go to Novis's apartment to see if he could find anything there. Marlow apparently then took Novis into the shower; later, with wet hair and wearing only trousers, he entered the living room and told Drinkhouse he had gotten the PIN. Soon thereafter, defendant and Coffman took Novis, her wrists in handcuffs and duct tape over her mouth, from the residence. The following evening, November 8, defendant and Coffman visited the home of Paul Koppers, Veronica's husband. Defendant told Koppers he had acquired a car and needed to get license plates that were not easily traceable. On November 11, the manager of a Taco Bell restaurant in Laguna Beach recovered various items, including a checkbook and bank card in the name of Corinna Novis and identification cards belonging to defendant and Coffman, from a bag near a trash receptacle behind the restaurant.

B. Penalty Phase

1. Prosecution case

In addition to the evidence of the murders of Lynell Murray and Corinna Novis presented during the guilt phase, the prosecution introduced further evidence of defendant's crimes against Corinna Novis, as well as other violent criminal conduct and a 1978 conviction for escape in Kentucky.

Regarding the offenses against Novis, the prosecution introduced defendant's testimony in his February 1989 capital trial in San Bernardino County, in which he had admitted kidnapping and robbing Novis before strangling her.

The prosecution also introduced evidence that on approximately July 7, 1986, in Whitley County, Kentucky, defendant and Coffman murdered Gregory Hill for financial gain. Hill's body was found on Upper Mulberry Cemetery Road, about a tenth of a mile from his residence. The cause of death was a single gunshot wound to Hill's lower right forehead, with powder stippling around the entry wound. In his February 1989 trial in San Bernardino County, defendant admitted he and Coffman had been paid a little more than $5,000 to kill Gregory Hill. Marlow contended he had initially changed his mind about killing Hill and that Coffman had indicated she would kill Hill by herself. Defendant ultimately acknowledged, however, that — as they had planned — Coffman, feigning car trouble, lured Hill to a truck parked on the roadway near his house, whereupon defendant emerged from a nearby hiding place to demand to know what Hill was doing with his sister. Hill drew a gun and pointed it at defendant; in the ensuing struggle over the gun, Hill was shot.

The prosecution also presented evidence that defendant had committed three robberies in 1979. In the first incident, early in the morning of November 5 of that year, defendant and a confederate, Allen Smallwood, came to the door of Jeffrey Johnson's apartment in the City of Upland and asked Johnson whether he worked in construction. When Johnson answered in the affirmative, defendant hit him in the face with a motorcycle chain and knocked him to the ground. Defendant and Smallwood then entered the apartment and began to look for drugs. Finding none, they took $180 from Johnson's dresser, along with a kitchen knife and a sword they found hanging on the wall. Defendant and Smallwood, taking Johnson, then went downstairs and entered the apartment of sisters Lori and Kathy Liesch. Defendant and Smallwood ordered Lori to get out of bed. When she told them she had no clothes on, defendant tried to pull the covers off her until Smallwood told him to leave her alone. Defendant then began to search the apartment and surprised Kathy Liesch as she was returning home. Defendant took Kathy into the bedroom, where he and Smallwood tied the two women and Johnson up with electrical cord and warned them not to contact the police because they had taken their identification and would "come after" them. When Lori continued to cry after defendant demanded that she stop, he grabbed his crotch and told her he would take her in the other room and "shut her up." Smallwood urged him to leave her alone.

In the second incident, on November 6, 1979, defendant entered a leather goods store owned by Joanne Gilligan in the City of Upland. Gilligan was assisting a customer when defendant went to the counter. When Gilligan asked if she could help him, defendant replied that he had a gun pointed at her and she should lie down on the...